Uni-Jet Industrial Pipe Ltd. et al. v. Canada (Attorney General) et al., (2001) 156 Man.R.(2d) 14 (CA)

• Jurisdiction: Manitoba
• Judge: Kroft, Monnin and Steel, JJ.A.
• Neutral Citation: 2001 MBCA 40
• Citation: (2001), 156 Man.R.(2d) 14 (CA),2001 MBCA 40,198 DLR (4th) 577,[2002] 1 WWR 287,[2001] MJ No 167 (QL),156 Man R (2d) 14,[2001] M.J. No 167 (QL),156 Man.R.(2d) 14,198 D.L.R. (4th) 577,(2001), 156 ManR(2d) 14 (CA),156 ManR(2d) 14
• Date: 10 April 2001
• Court: Court of Appeal (Manitoba)

Uni-Jet Ind. Pipe v. Can. (A.G.) (2001), 156 Man.R.(2d) 14 (CA);

    246 W.A.C. 14

MLB headnote and full text

Temp. Cite: [2001] Man.R.(2d) TBEd. AP.033

Uni-Jet Industrial Pipe Ltd. and Morris Baziuk (plaintiffs/respondents) v. The Attorney General of Canada, Larry Renkas and Gary Jennings (defendants/appellants)

(AI 00-30-04643; 2001 MBCA 40)

Indexed As: Uni-Jet Industrial Pipe Ltd. et al. v. Canada (Attorney General) et al.

Manitoba Court of Appeal

Kroft, Monnin and Steel, JJ.A.

April 10, 2001.

Summary:

The R.C.M.P. investigated the corporate plaintiff for fraud following a tip from a former employee. A search warrant was obtained. Extensive media coverage resulted from an R.C.M.P. officer advising the media. No charges were laid. The corporate plaintiff and Baziuk (owner) sued the Attorney Gen­eral and the officer involved for damages for negligence and for abuse of public office in publicizing the search and notifying the media prior to the laying of charges, con­trary to the R.C.M.P. Operational Manual.

The Manitoba Court of Queen's Bench, in a judgment reported 146 Man.R.(2d) 108, allowed the action in negligence. The release of information was contrary to the provisions of the Manual against revealing the names of suspects until charges were laid and it caused an innocent person (Baziuk) injury, injustice and embarrassment and injustice to the corporate plaintiff. The failure to abide by the Manual guidelines constituted negligence. The corporate plaintiff was awarded nominal damages of $1. Baziuk was awarded $20,000 general damages for injury to his reputation, and the pain and embarrassment resulting from the publicity. The court made no find­ing respecting abuse of public office. The Attorney General and officer appealed the finding of negligence. The plaintiffs cross-appealed, submitting that the trial judge erred in failing to find liability for abuse of public authority.

The Manitoba Court of Appeal allowed the appeal and the cross-appeal. The trial judge erred in finding negligence solely based on noncompliance with the Manual. It was merely one factor to be considered and was not determinative. Further, negligence re­quired proof of pecuniary damages, which were not established. However, the officer and Attorney General were liable for abuse of public office. The court awarded Baziuk $30,000 general damages and $10,000 puni­tive damages. The corporate plaintiff was awarded $15,000 general damages and $10,000 punitive damages.

Damage Awards - Topic 701

Torts - Injury to economic or business relations - Misfeasance or abuse of public office - The R.C.M.P. investigated the corporate plaintiff for fraud following a tip from a former employee - A search war­rant was obtained - Extensive media cover­age resulted from an R.C.M.P. officer notifying the media, contrary to department policy - No charges were ever laid - The officer was found liable in tort for abuse of public office - The owner of the corporate plaintiff suffered emotional upset and loss of reputation - The corporate plaintiff's reputation was tarnished - The Manitoba Court of Appeal awarded the owner $30,000 general damages and the corporate plaintiff $15,000 general damages - The court also held that the officer's conduct (acting contrary to his statutory authority to advance his own self-interest knowing that damage might well result) required punitive damages to publicly and forcefully express the court's disapproval - Both the owner and the corporate plaintiff were awarded $10,000 punitive damages - See paragraphs 62 to 94.

Damage Awards - Topic 2025.2

Exemplary or punitive damages - Mis­feasance or abuse of public office - [See Damage Awards - Topic 701 ].

Police - Topic 5005

Actions against police - Misfeasance in or abuse of public office - The R.C.M.P. investigated the corporate plaintiff for fraud following a tip from a former em­ployee - A search warrant was obtained - Extensive media coverage resulted from an R.C.M.P. officer notifying the media, contrary to department policy - No charges were ever laid - The corporate plaintiff and Baziuk (owner) sued the Attorney General and the officer involved for damages for abuse of public office - The officer knew that he should not have disclosed the in­formation and knew that there was a risk of harmful repercussions and embar­rassment - The Manitoba Court of Appeal held that the officer was liable for abuse of public office - He held a public office and the disclosure of information constituted a breach of his statutory authority in relation to his public duties - The officer, given his knowledge of the results of disclosure, had the required mental state to make his con­duct tortious - See paragraphs 18 to 61.

Police - Topic 5035

Actions against police - Negligence - Disclosure of information to media - The R.C.M.P. investigated the corporate plain­tiff for fraud following a tip from a former employee - A search warrant was obtained - Extensive media coverage resulted from an R.C.M.P. officer notifying the media - No charges were ever laid - The corporate plaintiff and Baziuk (owner) sued the Attorney General and the officer involved for damages for negligence in publicizing the search and notifying the media prior to the laying of charges, contrary to the R.C.M.P. Operational Manual - The trial judge allowed the action - The release of information was contrary to the provisions of the Manual against revealing the names of suspects until charges were laid and it caused an innocent person (Baziuk) injury, injustice and embarrassment and injustice to the corporate plaintiff - The failure to abide by the Manual guidelines constituted negligence - The Manitoba Court of Ap­peal held that the trial judge erred in find­ing negligence based solely on non­compliance with the Manual - It was mere­ly one factor to be considered and was not determinative - Further, negligence re­quired proof of pecuniary damages, which were not established.

Torts - Topic 9162

Duty of care - Particular relationships - Claims against public officials, authorities or boards - Misfeasance in or abuse of public office - The Manitoba Court of Appeal stated that the following was a clear and accurate statement of the law respecting abuse of public office: "in its earliest form, the tort of misfeasance in a public office was limited to cases where a public officer (a person exercising a statu­tory or prerogative power) abused a power actually possessed. Once it was shown that a decision was tainted with malice in the sense that there was an intent to inflict injury on the plaintiff then the invalid decision gave rise to a claim in damages. With time, the tort was extended to include cases in which decision-makers knew that they did not possess the power which they purported to exercise. Today, the ad­ministrative tort is established once it is shown that the invalid decision is tainted by either malice or knowledge" - See paragraph 60.

Cases Noticed:

Harman v. Tappenden (1801), 1 East 555, refd to. [para. 20].

McGillivray v. Kimber (1915), 52 S.C.R. 146, refd to. [para. 20].

Roncarelli v. Duplessis, [1959] S.C.R. 121, refd to. [para. 20].

Gershman v. Manitoba Vegetable Produc­ers' Marketing Board (1976), 69 D.L.R.(3d) 114 (Man. C.A.), refd to. [para. 20].

Dunlop v. Woollahra Municipal Council, [1982] A.C. 158 (P.C.), refd to. [para. 20].

Bourgoin SA and others v. Ministry of Agriculture, Fisheries and Food, [1985] 3 All E.R. 585 (C.A.), refd to. [para. 20].

Odhavji Estate et al. v. Woodhouse et al., [1998] O.T.C. Uned. 573 (Gen. Div.), refd to. [para. 20].

MacIntyre v. Nova Scotia (Attorney Gen­eral) et al., [1982] 1 S.C.R. 175; 40 N.R. 181; 49 N.S.R.(2d) 609; 96 A.P.R. 609, refd to. [para. 28].

Vickery v. Prothonotary Supreme Court (N.S.), [1991] 1 S.C.R. 671; 124 N.R. 95; 104 N.S.R.(2d) 181; 283 A.P.R. 181, refd to. [para. 31].

Southam Inc. et al. v. Coulter, J. et al. (1990), 40 O.A.C. 341; 60 C.C.C.(3d) 267 (C.A.), refd to. [para. 31].

Canadian Newspapers Co. v. Canada (At­torney General) (1986), 32 D.L.R.(4th) 292 (Ont. H.C.), refd to. [para. 32].

Canadian Newspapers Co. v. Canada (At­torney General) (1986), 31 D.L.R.(4th) 601 (Man. Q.B.), refd to. [para. 32].

Danch v. Nadon and Canada (1977), 18 N.R. 568 (F.C.A.), refd to. [para. 37].

Armstrong v. Royal Canadian Mounted Police (Commissioner) et al. (1994), 73 F.T.R. 81; 24 Admin. L.R.(2d) 1 (T.D.), refd to. [para. 37].

Three Rivers District Council et al. v. Bank of England (2000), 257 N.R. 1 (H.L.), refd to. [para. 45].

Northern Territory of Australia v. Mengel et al. (1995), 69 A.J.L.R. 527 (H.C.), refd to. [para. 51].

Garrett v. New Zealand (Attorney Gener­al), [1997] 2 N.Z.L.R. 332 (C.A.), refd to. [para. 52].

Alberta v. Nilsson, [1999] 9 W.W.R. 203; 246 A.R. 201 (Q.B.), refd to. [para. 55].

Gerrard et al. v. Manitoba and Muirhead (1992), 81 Man.R.(2d) 295; 30 W.A.C. 295 (C.A.), refd to. [para. 58].

Comeau's Sea Foods Ltd. v. Canada (Min­ister of Fisheries and Oceans) (1995), 179 N.R. 241; 123 D.L.R.(4th) 180 (F.C.A.), refd to. [para. 60].

Farrell v. Canadian Broadcasting Corp. (1987), 66 Nfld. & P.E.I.R. 145; 204 A.P.R. 145; 43 D.L.R.(4th) 667 (Nfld. C.A.), refd to. [para. 66].

Vale v. International Longshoremen's and Warehousemen's Union, Local 508, [1979] 5 W.W.R. 231 (B.C.C.A.), refd to. [para. 67].

Ley v. Hamilton (1935), 153 L.T. 384 (H.L.), refd to. [para. 69].

McElroy v. Cowper-Smith, [1967] S.C.R. 425, refd to. [para. 70].

Hodgson v. Canadian Newspapers Co. et al. (2000), 133 O.A.C. 174; 49 O.R.(3d) 161 (C.A.), refd to. [para. 70].

Hill v. Church of Scientology of Toronto and Manning, [1995] 2 S.C.R. 1130; 184 N.R. 1; 84 O.A.C. 1, refd to. [para. 71].

Walker et al. v. CFTO Ltd. et al. (1987), 19 O.A.C. 10; 59 O.R.(2d) 104 (C.A.), refd to. [para. 75].

Norberg v. Wynrib, [1992] 2 S.C.R. 226; 138 N.R. 81; 9 B.C.A.C. 1; 19 W.A.C. 1, refd to. [para. 75].

LeBar v. Canada (1988), 90 N.R. 5; 33 Admin. L.R. 107 (F.C.A.), refd to. [para. 89].

Health Care Developers Inc. v. New­foundland (1996), 141 Nfld. & P.E.I.R. 34; 443 A.P.R. 34 (Nfld. C.A.), refd to. [para. 89].

Abbott v. Canada (1993), 64 F.T.R. 81 (T.D.), refd to. [para. 89].

Namusa Enterprises Ltd. v. Etobicoke (City) (1990), 3 M.P.L.R.(2d) 227 (Ont. Gen. Div.), refd to. [para. 89].

First National Properties Ltd. v. Highlands (District) et al. (1999), 21 B.C.T.C. 290; 178 D.L.R.(4th) 445 (S.C.), refd to. [para. 89].

Longley v. Minister of National Revenue (1999), 19 B.C.T.C. 2; 176 D.L.R.(4th) 445 (S.C.), affd. (2000), 138 B.C.A.C. 17; 226 W.A.C. 17; 184 D.L.R.(4th) 590 (C.A.), refd to. [para. 89].

Rollinson v. Canada (1994), 73 F.T.R. 16 (T.D.), refd to. [para. 89].

Chhabra v. Minister of National Revenue (1989), 26 F.T.R. 288; 89 D.T.C. 5310 (T.D.), refd to. [para. 89].

Statutes Noticed:

Royal Canadian Mounted Police Act, R.S.C. 1985, c. R-10, sect. 18(b) [para. 23]; sect. 21(1) [para. 35]; sect. 37 [para. 24].

Authors and Works Noticed:

Fleming, John G., The Law of Torts (8th Ed. 1994), p. 622 [para. 68].

Gatley on Libel and Slander (8th Ed.), generally [para. 77].

R.C.M.P. Operational Manual - see Royal Canadian Mounted Police Operational Manual.

Royal Canadian Mounted Police Opera­tional Manual, policy C.2, policy D.1, policy E.1.b, policy F.4.c [para. 11].

Counsel:

D.A. Fraser and J.I. Katz, for the appel­lants;

R.L. Tapper, Q.C., and A.J. Ladyka, for the respondents.

This appeal and cross-appeal were heard on November 6, 2000, before Kroft, Monnin and Steel, JJ.A., of the Manitoba Court of Appeal.

On April 10, 2001, Kroft, J.A., delivered the following judgment for the Court of Appeal.